C2004/1864, Transcript of Proceedings [2004] AIRCTrans 1024 (19 March 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6314
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/1864

AUSTRALIAN EDUCATION UNION

and

BOX HILL INSTITUTE OF TAFE

Application under section 170LW of the Act
for settlement of dispute re the application
of the provisions of clause 12.8 of the Box Hill
Institute of TAFE Certified Agreement 2000

MELBOURNE

2.07 PM, THURSDAY, 4 MARCH 2004

PN1

MR D. BUNN: I appear for the Australian Education Union, Victorian Branch. With me MR D. COLLEY and MS G. ROBERTSON. Also in the courtroom the President of the sub-branch of the AEU at Box Hill Institute, MR HUDSON. I note that there is some possibility we may privately confer and we certainly need Mr Hudson here. If the Commission pleases.

PN2

MR J. ANDREWS: With me is MS D. McIVOR. We are appearing on behalf of the Box Hill Institute of TAFE. I am from the Victorian TAFE Association. Mr McIvor is from the Institute.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Andrews. Yes, Mr Bunn?

PN4

MR BUNN: Your Honour, as you know this matter concerns the working through of the dispute settling procedure in the Box Hill Institute of TAFEs Teachers Certified Agreement. The matter arises as a result of a grievance relating to an AEU member, Ms Marilyn Speiser, who works as a project manager in the Institute's on-line delivery of learning area. This position is what is described as a support service position and it does not involve any, or hardly any, face to face teaching.

PN5

In August last year she approached the manager seeking to have the terms of clause 12.8 of the agreement applied to her employment as a matter of her entitlement under that agreement. There were a series of discussions which involved the AEU sub-branch leading to a final firm rejection of that request. There was a meeting of the Teachers Agreement Consultative Committee on 3 September last year. That committee is constituted under clause 18 of the agreement and at that meeting the matter was not resolved, and in the words of our sub-branch, was seen to be a matter of impasse.

PN6

In the notification that I provided - in the documents that I provided as attachments to the notice in relation to this matter, your Honour, I have provided the document from the union which initiated a dispute and sought a dispute resolution committee to be established under the terms of that agreement. I also attached the findings, or the report of that dispute resolution committee, three of whose four members are here today, Mr Hudson, myself and Ms McIvor. And as required by the procedure of the Commission I have attached the terms of the certified agreement dispute settling provision.

PN7

I was proposing to hand that set of documents up now, your Honour, to ensure that those matters are in evidence.

EXHIBIT #AEU1 DOCUMENTS COMPRISING NOTICE OF DISPUTE UNDER THE DISPUTE SETTLING PROCEDURE, AEU LETTER DATED 13 OCTOBER TO MR MADDOCK, A DRAFT DOCUMENT DIRECTED TO MR MADDOCK, UNDATED, AND A COPY OF THE DISPUTE SETTLING PROCEDURE FROM THE RELEVANT AGREEMENT

PN8

MR BUNN: That document is labelled draft, your Honour, because that is the only form the union has it in, that is, we only have it in that electronic form. As I am sure Ms McIvor will confirm, that there had been delay in establishing the committee and we sought to get the matter to the chief executive quickly and we agreed, essentially, on electronic sign off which left me, and I think Mr Hudson, only with a document still labelled draft.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR BUNN: That report to Mr Maddock indicates plainly that the matter had not been resolved in the dispute resolution committee and I will come quickly to the nature of the argumentation in that committee. It is the - the conclusion and recommendations, your Honour, indicate the matter could not be resolved and there were three recommendations to the CEO. The first one noting importantly that the AEU in the process of those discussions in that committee had stated its intention of pursing the matter through the final stages of the dispute settling process which, essentially, involved this notice to the Commission to seek your assistance.

PN11

The CEO, Mr Maddock, e-mailed to Pat Forward, the vice president of the TAFE and adult provision sector of the union - indicated acceptance of the report on 12 March, your Honour, and again I will hand up a copy of that so that is also clearly before us all.

EXHIBIT #AEU2 E-MAIL DATED 15 DECEMBER FROM PAT FORWARD TO DAVID BUNN

PN12

MR BUNN: Obviously, your Honour, I seek particularly to draw your attention to the attached message - the original message from Mr Maddock to Ms Forward; it is slightly further down the page, in which he indicates his acceptance to the recommendations of the committee and indicates the three points - his position on the three points that have been recommended to him. The third point indicates that our member, Ms Speiser would be advised that an offer made to her on 28 October would stand until he made his decision under point 1.

PN13

And in order to just make that point plain I will also provide a copy of the only documentation available to me of what that offer was of 23 October and it is in the form of an e-mail copied to me by Mr Hudson who is the manager of organisation development at Box Hill Institute.

EXHIBIT #AEU3 E-MAIL DATED 28 OCTOBER TO MS SPEISER

PN14

MR BUNN: Your Honour, I wanted to briefly, having put those factual points by way of background, to run through the situation and the arguments as we see them.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR BUNN: We believe that the Box Hill TAFE Teachers Agreement makes plain that clause 12.8 applies to all employees covered by the agreement. Clause 12.8 relates to attendance, hours and weeks required of teachers. And as Ms Forward indicated in that notification of dispute to the CEO at Box Hill the argument seems to us to be, inexorable, really. The provisions of clause 12.8 - your Honour, I have brought copies of the Box Hill agreement. Do you have it?

PN17

THE SENIOR DEPUTY PRESIDENT: I have a copy, thank you, yes.

PN18

MR BUNN: Clause 12.8 on its terms applies to teachers. It makes no distinction as to types of teachers or to their role - the nature of their duties, etcetera. In a definitions clause of the agreement teachers - the word, "teacher" is defined as having the same meaning as employee. And, again in the definitions clause the word, "employees" is defined as a person employed under the agreement. Looking behind that the application and scope clause provides that the agreement applies to employees of the Council of the Institute of TAFE whose terms and conditions are regulated by the TAFE Teachers Conditions of Employment Interim Award 1994.

PN19

And it is again a matter readily demonstrated by referring to the award that the employment of persons working in a support service role are regulated by that award. So that the - to circle back the reference to teachers in clause 12.8 must include support service - teachers who are performing support service roles. And therefore Ms Speiser and other employees whose employment is covered by the agreement are entitled to work in accordance with that clause.

PN20

Clause 12.8, your Honour, provides that teachers are required to attend the workplace for 30 hours per week and up to 42 weeks per year providing that, excluding periods of approved leave, a teacher may be required to undertake professional duties for 52 weeks at an average of 38 hours per week. Core attendance time within the ordinary hours of duty. Teachers are not required to attend the workplace on days where duties are not scheduled provided the 30 hours per week attendance requirement is met.

PN21

At clause 12.8, on the face of it, your Honour, is entirely and simply about the required attendance of teachers including teachers working a support service role. As you have probably had a chance to look at the report of the dispute resolution committee the Institute's representatives on that committee drew particular attention to the preceding sub clause 12.7 which provides:

PN22

In a calendar year teachers may only be allocated teaching and other duties over a 42 week period provided that teachers in the support service may have their duties allocated over a 44 week period.

PN23

And for fear of mischaracterising their argument I will leave it to them to put that, but we say that the distinction between support service teachers and other teachers in that clause is not relevant to the meaning of clause 12.8. Clause 12.7 is clearly about the period over which duties may be allocated to teachers and it distinguishes a 42 week period for teachers other than those in the support service who may have duties allocated over a 44 week period. But the allocation of duties over differing periods makes no - implies no statement about the hours of attendance, so clearly, duties can be allocated during periods of time when people aren't required to be in attendance.

PN24

The whole point of 12.8 is that people can be required to work - they are required to work 38 hours, at least, but they may only be required to attend the workplace 30 hours. By necessity some of those hours of required work must be done outside of the workplace. It is important - seeking to make this brief, your Honour, it is important to draw your attention to the fact that the frame of the agreement is quite different to the frame of the award. The award, clause 18, relates to hours of work for teachers and it - do I need to provide you with a copy of the award, your Honour?

PN25

THE SENIOR DEPUTY PRESIDENT: No, no, I have the award, thanks.

PN26

MR BUNN: Clause 18 is titled, "Hours of work" and clause 18.1 is an exclusion clause in relation to teachers in support service positions. And it provides, relevantly, that sub clause 18.2 to 18.9 do not apply to support service teachers. And 18.2 to 18.9 cover provisions in relation to minimum 38 hours a week, 30 hours required attendance, teaching hours, teaching duties, time allowances and work outside ordinary hours of duty. So the award makes a specific provision to exclude teachers in support service roles from those provisions.

PN27

Whereas the agreement, with that model before it, that agreement does not provide for an exclusion and in fact by virtue - the way the terms are defined in the agreement embraces support service teachers in that - in the provisions in relation to hours and weeks of attendance. Your Honour, I should in closing indicate that there was a telephone discussion between the AEU and the CEO on Tuesday night in which there was a further attempt to resolve the matter. Phone conversations are unsatisfactory ways of resolving matters of this sort and in this case it was not resolved and it was clearly understood between the parties in that discussion that we would seek to resolve the matter before you today the phone having proved not a good way of doing it.

PN28

Finally, your Honour, we would seek a recommendation from you today by way of facilitating a resolution of the matter and I will hand up a draft form of recommendation in closing the submission. The recommendation notes the genesis of this hearing and of the dispute. It indicates that the parties have been unable to resolve the matter prior to reaching this point in the dispute settling process and seeks that the Commission recommend that the Institute in implementing the agreement acts upon the understanding that all teachers covered by the agreement are entitled to the provisions of clause 12.8. If the Commission pleases.

PN29

THE SENIOR DEPUTY PRESIDENT: What is the practical issue underlying all this? Ms Speiser, I see from AEU3, is doing some work from home for a 12 month period but I see from another document - I think the document headed, "Draft" - that that has not resolved the dispute. Can you just tell me on the practical manifestations of this?

PN30

MR BUNN: Yes, your Honour, the work that Ms Speiser does can be done readily from home as it involves the preparing of on-line material. There is personal circumstances which lie behind her seeking to have access to a 30 hours required attendance arrangement. AEU3 records, as best as I can understand it, that the Institute has offered Ms Speiser an arrangement. What that arrangement is is unknown to me but I believe it does enable her to do some work not at her place of work.

PN31

And as you can see, Mr Hudson's e-mail to her indicates that the situation would be reviewed in 12 months time from last October. Mr Maddock's acceptance of the report, AEU2, indicates a slightly - presumably a slightly lesser offer which is that, whatever the precise terms of that offer may be - and I am not being evasive about that and I don't believe that they have been reduced to writing, and certainly if they have been, they have never been provided to the union. But Mr Maddock indicates that the offer would stand until - only until he has made a decision on point 1, which may or may not be later than October 2004.

PN32

So Ms Speiser sought acknowledgment that she had an entitlement and that that entitlement would not vary by the flux of time. So it would not be different in October 2004 to what it was in 2003. And she sought to access those conditions on the basis that she had an entitlement to them under the agreement. And the offer that she has been made, I believe, goes a significant way to meeting her personal circumstances, but it does not guarantee to her those conditions on an ongoing basis.

PN33

As I say, without having access to the terms of that offer, it appears to me that the offer provides her with those conditions subject to the continuance of certain personal circumstances. And on that basis she is not being - neither she nor the union have felt that the grievance that she has raised has been appropriately addressed.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes.

PN35

MR BUNN: Is that an appropriate response to your question?

PN36

THE SENIOR DEPUTY PRESIDENT: Well, it assists me, yes, yes. In clause 12.8, what is meant by scheduled duties where duties are not scheduled?

PN37

MR BUNN: You are going to the heart of the most arcane part- pieces of TAFE teaching, your Honour, and I hesitate with the depth of learning around the table to even attempt this, but 12.8 - are you going to 12.8?

PN38

THE SENIOR DEPUTY PRESIDENT: 12.8.

PN39

MR BUNN: Yes. Teachers perform teaching duties and other scheduled duties which can include - these are the duties that are scheduled by timetable. So that they are not the duties which are necessarily attended upon delivering teaching, so preparation time and correcting, but they are other duties including things like faculty meetings, course development and so on. And if you seek to go further we may need to get Mr Colley up to really do hammer and tongs on that one, your Honour

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, well, let us see whether Mr Andrews can help us. Mr Andrews?

PN41

MR ANDREWS: Thank you, your Honour. I intend to make some brief submissions and then make the suggestion that we move into private conference mainly to discuss a process for resolving this matter if there is, in fact, a matter outstanding. Basically, our view is that clause 18.1 of the award clearly specifies which award clauses do not apply to support service staff. This non application takes in clause 18.3 and 18.6 of the award.

PN42

THE SENIOR DEPUTY PRESIDENT: Of the award?

PN43

MR ANDREWS: Yes, regarding the 30 hours per week attendance restrictions for teachers. We say that is teachers with a full teaching load. We say that in terms of addressing - starting to address some of Mr Bunn's submissions, we say that clause 18.1 of the award is not overridden of the EBA. We say that clause 18.1 of the award serves the effect of a further definition in the award and it still applies. We would also add in terms of points we would ask you to note, that from the Institute's understanding, there was never an intent to provide support service staff with above and beyond their award provisions for their weekly hours of attendance.

PN44

And at worst, depending on which way you are looking at it, there is, perhaps, an ambiguity but otherwise we believe our view that clause 18.1 of the award is not overridden; it still stands. We - - -

PN45

THE SENIOR DEPUTY PRESIDENT: Where does the ambiguity arise in - - -

PN46

MR ANDREWS: We believe that the submission of the union, at best, from their point of view, is - some ambiguity regarding the intent. We believe it is quite clear that clause 18.1 of the award still applies and therefore the support service staff do not get the 30 hours per week attendance restriction of teachers, and therefore by effect, they can be required to attend for 38 hours a week which is the hours of work in the award and also in the enterprise agreement.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes.

PN48

MR ANDREWS: Those are the points that we would ask you to note - are that the issue for the employee concerned, Marilyn Speiser has in fact been resolved locally under the EBA disputes procedure; that is our contention. And we think that it has been well resolved by the parties addressing the arrangement that was being talked about. I can provide some more details about that. The person's particular family circumstances were taken into account by providing her - just her - with the arrangements to work from home on Fridays, or as mutually agreed, for 12 months under the Institute's family friendly practices.

PN49

In terms of the appropriate form for any continuation of the Commission's proceedings, we request that your Honour also notes the point that Mr Bunn raised, that in response to the local disputes committee's recommendation, the Institute director had contacted the union central office recently - sorry, soon after receiving the disputes report and it was only on the afternoon or evening of 2 March when some subsequent discussion was held. And we believe it is much too early for this matter to be referred to the Commission for anything but perhaps a conference or - a private conference at this stage.

PN50

We therefore seek to adjourn into a private conference regarding the process for resolving the dispute, if in fact, there is a dispute.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you,. What do you say to that, Mr Bunn? Are you happy to go into conference?

PN52

MR BUNN: I have no objection to conferring with the other party with your assistance, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, very well, I will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED [3.45pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AEU1 DOCUMENTS COMPRISING NOTICE OF DISPUTE UNDER THE DISPUTE SETTLING PROCEDURE, AEU LETTER DATED 13 OCTOBER TO MR MADDOCK, A DRAFT DOCUMENT DIRECTED TO MR MADDOCK, UNDATED, AND A COPY OF THE DISPUTE SETTLING PROCEDURE FROM THE RELEVANT AGREEMENT PN8
EXHIBIT #AEU2 E-MAIL DATED 15 DECEMBER FROM PAT FORWARD TO DAVID BUNN PN12
EXHIBIT #AEU3 E-MAIL DATED 28 OCTOBER TO MS SPEISER PN14